In a momentous case of great significance for federal employees, the U.S. Court of Appeals for the D.C. Circuit overturned a lower court decision and ruled that “an agency cannot shield its records from search or disclosure” under the Freedom of Information Act (FOIA) “by the expedient of storing them in a private email account.” The case has been remanded for further proceedings based on these findings.

The federal FOIA requires that a federal agency, upon a proper request for agency records “make the records promptly available to any person.” In this recent case, Competitive Enterprise Institute v. Office of Science and Technology Policy (2016) the scope of the FOIA statute was analyzed. The Appellant in the present case, Competitive Enterprise Institute (CEI), filed a request under FOIA to the Appellee, Office of Science and Technology Policy (OSTP) requesting that it turn over all agency records housed on a nonofficial email account maintained at the Woods Hole Research Center. OSTP refused to comply with the FOIA request arguing in its response that the records were “beyond the reach of FOIA” because they were “under the control” of the Woods Hole Research Center, a private entity, rather than under the control of the agency itself.

The OSTP cited the D.C. Circuit Court case of Founding Church of Scientology of Washington, D.C., Inc. v. Regan (1981) as precedent for its assertion. That case had held that FOIA does not give courts the authority “to command agencies to acquire a possession or control of records they do not already have.” The records at the center of that case were in the possession of Interpol, rather than in the possession of the United States agency that was a party to the action. In the most recent case, the D.C. Circuit refused to follow this holding, noting that while the agency no longer had access to the records in that case because the records were in the exclusive possession of Interpol, in this case, OSTP maintained access to the email records despite the fact they were housed on a private server at Woods Hole.

The D.C. Circuit Court found the case of Burka v. Department of Health and Human Services (1996) to be more akin to the present one. The court in Burka held that an agency must disclose records not housed at the agency’s physical location if the agency still maintained “constructive control” over the records. Arguably, it stated, even though the records in the present case were not housed at OSTP’s physical location, OSTP continued to have “constructive control” over the records because it continued to have access to the email account from which the Appellant sought records.

In its decision, the D.C. Circuit concluded that the appellee’s argument was not consistent with the purpose of FOIA, which is to serve “the citizens’ right to be informed about what their government is up to.” This purpose would not be served, the Court argued, if an agency had the ability to deny citizens’ access to records simply by storing them on a private server. The Court further argued that this notion is analogous to an agency depriving citizens of access to hard-copy records simply because they were being stored in a file at the house of an agency member’s daughter.

This case has the potential to alter FOIA litigation indefinitely into the future. If the decision is upheld upon further review, if any, a FOIA request would not only capture records housed at the physical location of the agency, but would also capture records under the agency’s constructive control, despite the records being housed remotely on another entity’s or person’s computer or on other IT equipment.

If you feel as though your FOIA request has been improperly denied, and wish to appeal that denial, you should contact an appeals attorney immediately to discuss your options.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at [email protected]. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.